respect to the stocks from whence they sprang, and those children were partly male and partly female; then the eldest male among them would exclude not only his own brethren and sisters, but all the issue of the other two daughters; or else the law must be inconsistent with itself, and depart from the preference which it constantly gives to the males, and the first-born. Whereas, by dividing the inheritance according to the roots, or stirpes, the rule of descent is kept uniform: the issue of the eldest son excludes all others, as the son himself, if living, would have done; but the issue of two daughters divide the inheritance between them, provided their mothers, if living, would have done the same: and among these several issues, or representatives of the respective roots, the same preference to males and the same right of primogeniture obtain, as would have obtained at the first among the roots themselves.

The remaining canons of descent apply to collateral succession ; in respect of which the modern differ in two main respects from the ancient rules of inheritance. The first point of difference relates to the lineal succession of parents, and other ancestors; the second to the succession of relatives by the half, in default of those related by the whole blood to the person last entitled.

It will be necessary to refer shortly to the old rule, which still affects descents that took place previously to the year 1834, "that, on failure of lineal descendants or issue, of the person "last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser."

If, then, Geoffrey Stiles purchased land, and it descended to John Stiles his son, and John seised thereof without issue; whoever succeeded to this inheritance must have been of the blood of Geoffrey the first purchaser, he who first acquired the estate, whether the same was transferred to him by sale or by gift, or by any other method, except that of descent.

When feuds first began to be hereditary, it was made a necessary qualification of the heir, that he should be of the blood of, that is, lineally descended from, the first feudatory or purchaser. In consequence thereof, if a vassal died seised of a feud of his own acquiring, or feudum novum, it could not descend to any but his own offspring; no, not even to his brother, because he was not descended, nor derived his blood, from the first acquirer

But if it was feudum antiquum, that is, one descended to the vassal from his ancestors, then his brother, or such other collateral relation as was descended and derived his blood from the first feudatory, might succeed to such inheritance. The feudal reason for which was: that what was given to a man, for his personal service and personal merit, ought not to descend to any but the heirs of his person.

However, in process of time, a method was invented to let in collateral relations of the grantee, by granting him a feudum novum to hold ut feudum antiquum ; that is, with all the qualities annexed of a feud derived from his ancestors; and then the collateral relations were admitted to succeed in infinitum, because they might have been of the blood of the first imaginary purchaser. And of this nature ultimately became all the estates in fee simple in the kingdom.

Yet, when an estate had really descended to the person last seised, the strict rule was still observed; and none were admitted but the heirs of those through whom the inheritance had passed. Therefore, if lands came to a man by descent from his mother, no relation of his father could ever be heir; and vice versû, if they descended from his father, no relation of his mother could ever be admitted thereto.

This, then, was one of the general principles of collateral inheritances; that, upon failure of issue in the last proprietor, the estate should descend to the blood of the first purchaser; or result back to the heirs of the body of that ancestor from whom it either really had, or was supposed to have originally descended. To give full effect to which, another rule provided that "the collateral heir should be his next collateral kinsman, "of the whole blood;"-for if there were a much nearer kinsman of the half blood, a distant kinsman of the whole blood was admitted, and the other entirely excluded; nay, the estate was allowed to escheat to the lord sooner than the half blood should inherit.

This total exclusion of the half blood was long regarded as a strange hardship; and has now been altered, so that any discussion of the feudal principles on which it was founded would be profitless, unless as matter of legal history, which is not the object of these commentaries.

The only other rule of the old law which has been superseded, was that which gave the preference to the paternal over the maternal line; where the lands had, in fact, descended from a female. For the relations on the father's side were admitted in infinitum, before those on the mother's side were admitted at all; and the relations of the father's father, before those of the father's mother; and so on.

This rule was necessary to carry into execution the principal canon of collateral inheritance, that every heir must be of the blood of the first purchaser. For, when such first purchaser was not to be discovered after several descents, the law not only took the next relation of the whole blood; but, considering that a preference had throughout been given to males, judged it more likely that the lands should have descended to the last tenant from his male than from his female ancestors; and, therefore, hunted back the inheritance through the male line, on the theory that this was the most probable way of continuing it in the line of the first purchaser. This rule, also, has been modified to some extent by the legislature; so that it now remains for me simply to add the modern canons regulating collateral descents, after premising a few words on the leading changes introduced in our law of inheritance.

Firstly, then, we have seen that in every case descent shall now be traced from the purchaser; who is to be the person last entitled to the land, unless he inherited the same:-the person last entitled, including the last person who had a right thereto, whether he did or did not obtain the possession or the receipt of the rents and profit thereof. The maxim, seisina facit stipitem, is thus annulled.

Secondly, under the old law, there being no lineal ascent, a brother or sister was considered to have inherited immediately from a brother or sister; and the common ancestor need not have been named. This rule has been set aside; so that every descent from a brother or sister must now be traced through the parent; this being a necessary consequence of one of the alterations effected in the ancient law, that, namely, which provides that a father or other lineal ancestor may succeed to his son or other lineal descendant.

Thirdly, the rule that in collateral inheritances the male stock

shall be preferred to the female, unless where the estate has actually descended in the maternal line, remains intact, although modified in detail.

Lastly, a relation by the half blood stands in the order of inheritance, so as to be entitled to inherit, next after any relation in the same degree of the whole blood, and his issue, when the common ancestor is a male, and next after the common ancestor when the common ancestor is a female; so that the brother of the half blood, on the part of the father, inherits next after the sisters of the whole blood on the part of the father and their issue, and the brother of the half blood on the part of the mother inherits next after the mother.

These rules of the law will be found expressed in the following canons, viz. :—

VI." On failure of issue of the purchaser, the inheritance "shall go to his nearest lineal ancestor or the issue of such ancestor, the ancestor taking in preference to his or her issue.” Thus, if the purchaser dies without issue, the father takes before the brothers or sisters of that purchaser; and a grandfather, not before the father or the father's issue, but before the uncles or aunts or their issue.

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VII. "Paternal ancestors and their descendants shall be preferred to maternal ancestors and their descendants, male paternal ancestors and their descendants to female paternal "ancestors and their descendants, and male maternal ancestors "and their descendants to female maternal ancestors and their descendants, and the mother of a more remote female ancestor on either side and her descendants to a mother of a less remote "female ancestor and her descendants." Thus the mother of the paternal grandfather, and her issue, shall be preferred to the father's mother and her issue.

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VIII. "Relations of the half blood shall inherit; those related ex parte paternâ, taking next in order to the relations male and "female of the same degree of whole blood; those related ex “ parte mîternâ, taking next in order after their mother.”

These general rules apply to lands both of freehold and copyhold tenure, and whether descendible according to common law or the custom of gavelkind, Borough-English, or other custom.

But the peculiarities of descent which belong to these customary tenures, are not interfered with. Thus the rule of gavelkind by which all the sons take equally is unaltered; but the new canon which enables a father of the purchaser to inherit in preference to the uncles, holds equally in this tenure,—as also the rule admitting kindred of the half blood.

CHAPTER XII.

OF TITLE BY PURCHASE, AND FIRST BY ESCHEAT.

PURCHASE, perquisitio, taken in its largest sense, is defined the possession of lands and tenements, which a man hath by his own act or agreement, and not by descent. In its vulgar acceptation it is applied only to such acquisitions of lands as are obtained by way of bargain and sale. But this falls short of the legal idea of purchase: for, if I give land freely to another, he is in law a purchaser; as he comes to the estate by his own agreement, that is, he consents to the gift. And a man who has his father's estate settled upon him in tail, before he was born, is also a purchaser; for he takes quite another estate than the law of descents would have given him.

But if an estate be made to A for life, remainder to his right heirs in fee, his heirs take by descent; for it is an ancient rule that wherever the ancestor takes an estate for life, the heir cannot by the same conveyance take an estate in fee by purchase but only by descent.

What we call purchase, the feudist called conquest, both denoting any means of acquiring an estate otherwise than by inheritance. Hence the appellation given to William the Norman, signifying that he was the first of his family who acquired the crown of England. This is the legal signification of the word, purchase; and in this sense it includes.-1. Escheat. 2. Occupancy. 3. Prescription. 4. Forfeiture. 5. Alienation.

I. Escheat was one of the consequences of feudal tenure; being founded upon this principle, that the blood of the person last seised in fee-simple was, by some means or other, utterly extinct: